Holomaxx tried the wiretapping argument when they sued Yahoo and Hotmail. That case cited a cause of action under both federal law and California law. The wiretapping claim was addressed specifically by the lawyers for the defendants.

California’s criminal privacy statutes were meant to protect intrusion on confidential conversations, not restrict filtering of bulk emails from commercial email advertisers. See People v. Newton, 42 Cal. App. 3d 292, 296 (1974). Here, Plaintiff is admittedly a bulk “email service provider” who derives its revenue from sending “marketing emails” and advertisements and by being “paid a fixed amount per email sent.” (See, e.g., FAC ¶¶ 16-17.) Plaintiff cannot credibly claim either an expectation that its advertising emails stay private or an unawareness that its communications would be subject to possible spam filtering. Indeed, the very opposite is true.13 See People v. Nakai, 183 Cal. App. 4th 499, 518 (2010).

Nor does Plaintiff cite any case law where a state wiretapping or eavesdropping claim in the context of electronic mail, survived a motion to dismiss. This is because sections 630 and 631 of the Penal Code were enacted to protect communications over telephone or telegraph and “a court is not free to advance the public policy that underlies a statute by extending the statute beyond its plain terms and established reach.” See Moallem v. Coldwell Banker Commercial Group, Inc., 25 Cal. App. 4th 1827, 1833 (1994); Membrila v. Receivables Performance Mgmt., LLC, 2010 WL 1407274, at *2 (S.D. Cal. Apr. 6, 2010) (Section 631 limited to telephone or telegraph claims).

Given there is case law that states the California wiretapping / eavesdropping statute only applies to telephone or telegraphic communications, I don’t think this potential class action suit is going very far.

You can't technical your way out of the bulk folder. I wrote that a year and a half ago, and it's even more true today. Filters at the big webmail providers continue to evolve to meet new threats and new spamming techniques. Sending technically perfect mail won't get your mail into the inbox. Recipients have to want the mail and interact with the mail for good delivery.
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